A lawyer may choose to specialize in a wide range of law areas. Probate law can be a viable choice for those interested in helping families handle their real estate inheritance while experiencing the emotional stress of losing a loved one. But what is a probate lawyer exactly, and what do they do? Keep on reading to find out more.
Probate Lawyer Definition and Key Probate Terms
A probate lawyer is an attorney who facilitates the legal process regarding the distribution of the estate assets upon a person’s death. This kind of lawyer is there to ensure that the inheritance is assigned fairly and according to the decedent's wishes, at least if their wishes have been made known in the form of a will.
In addition, they help solve the issue of how the deceased's remaining debts will be paid off.
Before we go into more detail about wills and probate lawyers, let’s explain some key terminology used in probate law.
- Decedent: This term is used to refer to the person who died.
- Testator: This is the person who wrote the will.
- Estate: All the decedent’s possessions, such as the house, jewelry, and funds, fall under the estate.
- Executor: This term refers to the person appointed in the will to be the decedent's personal representative. Their responsibility is to follow and execute the instructions given in the will.
- Administrator: This individual is also referred to as a personal representative. They have the same role as the executor but are appointed if the decedent didn’t leave a will.
- Beneficiary: Any person or organization set to inherit the decedent’s assets is referred to as a beneficiary.
- Contestant: This is the person who challenges a will due to the belief that certain factors influenced the decedent’s decision.
- Pretermitted heir: In case the decedent’s spouse or child was left out of the will, and the court determines that this person is a rightful heir, they are referred to as a pretermitted heir. This may occur, for example, if the decedent’s child was born after the will was written.
- Testate / Intestate: If someone dies testate, it means they drafted a will before their death. In contrast, dying intestate means the person didn’t leave a will behind.
Probate Lawyer vs. Estate Planning Lawyer
Given that both probate lawyers and estate planning lawyers deal with estate administration, some may confuse the two. However, there are some key differences to note.
Namely, estate planning lawyers help individuals draft wills, trusts, and other documents regarding the distribution of their assets before their death, while lawyers for probate court help the beneficiaries handle the probate process. A probate lawyer may choose to specialize in estate planning, as well, or solely focus on probate law, and vice versa.
Probate Lawyer Duties
The duties of a probate lawyer may vary from case to case. The main factor influencing this type of attorney’s responsibilities is whether the deceased left a will or not. Testate is the legal term used if the person who died wrote a will.
When someone dies intestate or without a will, the estate is distributed according to state laws, which can vary a great deal. In that case, the probate law attorney will help the clients decide who would be the executor if more than one person is eligible to fill the role.
After that, they will assist in the filing of the petition. When there’s a will involved, it typically names the administrator, so the process of finding an executor doesn’t apply there.
What else does a probate lawyer do? A probate attorney is also there to help the executor and beneficiaries in the following:
- Identifying all the decedent’s assets,
- Preparing and filing documents with the probate court,
- Collecting life insurance,
- Paying off the decedent’s debts and bills,
- Obtaining evaluations for the deceased's real estate,
- Identifying and paying estate, income, and inheritance taxes,
- Transferring the asset ownership into the beneficiaries’ names.
Furthermore, this type of lawyer can also help clients contest a will if there are grounds to do so. For instance, let’s say that the decedent remarried not long before their death and left a considerable chunk of the estate to their new spouse.
If members of the decedent’s family, such as the children, suspect the beneficiary was named under undue influence, they may file a petition to challenge the will, and that’s where a probate lawyer can step in.
How to Become a Probate Lawyer
Becoming any type of lawyer takes time and dedication. If you have an affinity for probate law, here is a list of steps you need to take to practice in this area.
Obtain an Undergraduate Degree
To get into law school, prospective probate lawyers must first acquire a Bachelor’s degree. However, there are no set requirements regarding the major.
You may major in any subject, but it’s recommended to choose the one that has the potential to prepare you to become a successful lawyer for the probate court. Thus, you may wish to choose subjects like psychology, English, sociology, or political science.
Pass the LSAT
Apart from maintaining a good GPA during your undergraduate studies, doing well on the Law School Admission Test (LSAT) is the key to getting into the law school of your choice. The test consists of two parts.
The first part has multiple-choice questions and tests the candidates’ reading comprehension, logical reasoning, and analytical reasoning. The second part is LSAT writing.
Finish Law School
After successfully passing the LSAT, it’s time to apply for a law school. It’s a good idea to choose a school that has an estate law program. Here you may learn about asset and trust management, family law, and estate planning. After completing law school, you’ll earn a Juris Doctor degree, which will make you eligible to take the Bar exam.
Pass the Bar Exam
Anyone planning to become a licensed attorney is required to pass the Bar exam, and probate attorneys are no exception. This is a two-day exam that extensively tests the candidates’ legal knowledge.
The exam structure may vary according to state, given that not all states have adopted the Uniform Bar Exam (UBE). For example, besides inquiring about the applicants’ legal knowledge in general, California's State Bar exam also includes questions about laws regarding the state of California in particular.
Study the Uniform Probate Code
Before you start your journey as a probate attorney, you should familiarize yourself with the Uniform Probate Code. This is a code that standardizes probate law across different states. So far, it has been fully adopted by 18 states and partially in the rest of them.
This code explains how probate law works, such as what happens when a person dies intestate. It also deals with how wills are handled and regulates trust administration.
A probate lawyer is a type of attorney who handles legal matters regarding the distribution of the estate assets of a deceased individual to the inheritors. To become such a lawyer, one needs to complete law school, pass the bar, and learn the Unifrom Probate Code.